# Sashi Bhushan Pandey v. U.P.P.S.C., Allahabad and another

- **Citation:** (2010) 2 ILRA 758
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-14
- **Case number:** Civil Misc. Writ Petition No. 40033 of 1993
- **Bench:** Sunil Ambwani, Kashi Nath Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sashi-bhushan-pandey-v-u-p-p-s-c-allahabad-and-another-41690
- **Pages:** 4

## Headnote

Constitution
of
India,
Art-226-Writ
Petition-Challenging
the
selection
of
reserve category candidate in General
Category-effected/selected person not
impleded-selection made much prior to
18 years-can not be Questioned-most of
them
have
been
promoted-held-in
absence of necessary party-Petition not
maintainable.

Held: Para 9

In this case we further find that the
three candidates who belonged to O.B.C.
category and were selected in general
category, giving the cause of action for
filing the writ petition, have not been
impleaded. They were appointed in the
year 1992 and most of them would have
served for more than 18 years as District
Audit Officers and may have been
promoted to the higher posts in the
department. In the absence of necessary
parties, no relief can be granted to the
petitioner.
2 All Sashi Bhushan Pandey V U.P.P.S.C., Allahabad and another
759
Case Law discussed
(2010) 3 SCC 119, (1992) Supp (3) SCC 217,

## Text

758 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
show cause notice, giving detailed reasons
but without expiry of one month of show
cause notice the boulders could not be
seized by the respondents in view of clear
provision of Rule 13(2) of the Rules 2002.
Therefore, show cause notice dated
19.4.2010 and simultaneous seizure of
boulders is contrary to Rule 13(2) of the
Rules 2002.

10. Therefore, we direct that the
seizure of boulders by the respondents
simultaneously alongwith show cause
notice dated 19.4.2010 is wholly illegal
and is liable to be quashed. However, if
the petitioner submits his reply to the
show cause notice within the period of
one month from today it shall be
considered by the respondents and the
respondents shall pass a detailed reasoned
order after considering each and every
point raised by the petitioner in his reply
to the show cause notice.

11. In the result, the writ petition
succeeds and is allowed. The show cause
notice dated 19.4.2010 so far as it directs
seizure of the petitioner's boulders is
quashed. The boulders which had been
seized by the respondents shall be
released to the petitioner forthwith.
However, the petitioner shall submit his
reply to the show cause notice within the
period of one month from today which
shall be considered by the respondents
and the respondents shall pass a detailed
reasoned order after considering each and
every point raised by the petitioner in his
reply to the show cause notice.

12. Parties shall bear their own
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2010

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE KASHI NATH PANDEY, J.

Civil Misc. Writ Petition No. 40033 of 1993

Sashi Bhushan Pandey
 ...Petitioner
Versus
U.P.P.S.C., Allahabad and another

 ...Respondents

Counsel for the Petitioner:
Sri B.D. Pandey
Sri Abhishek Rai
Sri Chandan Sharma
Sri Vinay Malviya
Sri V.K. Goel

Counsel for the Respondents:
Sri M.A. Qadeer
S.C.

Constitution
of
India,
Art-226-Writ
Petition-Challenging
the
selection
of
reserve category candidate in General
Category-effected/selected person not
impleded-selection made much prior to
18 years-can not be Questioned-most of
them
have
been
promoted-held-in
absence of necessary party-Petition not
maintainable.

Held: Para 9

In this case we further find that the
three candidates who belonged to O.B.C.
category and were selected in general
category, giving the cause of action for
filing the writ petition, have not been
impleaded. They were appointed in the
year 1992 and most of them would have
served for more than 18 years as District
Audit Officers and may have been
promoted to the higher posts in the
department. In the absence of necessary
parties, no relief can be granted to the
petitioner.
2 All Sashi Bhushan Pandey V U.P.P.S.C., Allahabad and another
759
Case Law discussed
(2010) 3 SCC 119, (1992) Supp (3) SCC 217,

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Sri Abhishek Rai,
Advocate holding brief of Sri Chandan
Sharma
for
the
petitioner.
Learned
Standing
Counsel
appears
for
the
respondents.

2. The petitioner appeared in the
selections for the post of District Audit
Officer advertised by the U.P. Public
Service Commission at Allahabad, vide
advertisement dated 23.12.1989. Out of
the advertised 18 vacancies, 10 vacancies
were for General category candidates. The
remaining
vacancies
were
divided
between other categories in the following
manner:-

(1) 03 vacancies for Other Backward
Class category.

(2) 03 vacancies for Scheduled Caste
category.

(3) 01 for Dependant of Freedom
Fighter.

(4) 01 for Ex-Army Men.

3. The petitioner was allotted Roll
No. 01258. He qualified for interviews
held on 2nd May, 1992, as a general
category candidate.

4. The petitioner submits that
respondents
wrongly
allowed
other
backward class candidate to be included
in the select list of general category
candidates,
and
thus
deprived
the
petitioner from getting selected against
the three vacancies filed up by the other
backward class candidates in general
category.

5. In the counter affidavit it is stated
that the petitioner was not selected as he
scored only 407 out of 700 marks,
whereas,
the
last
general
category
candidate scored 423 out of 700 marks.
There were three vacancies reserved of
the O.B.C. candidates but six candidates
were
declared
successful.
Three
additional candidates of O.B.C. category
namely Mahendra Prasad Chaudhary
(Roll No. 6), Santosh Kumar (Roll No.
608) and Shankar Prasad Chaurasia (Roll
No. 15) secured 427, 482 and 421 marks
respectively. They were included on the
basis of their merit in the general
category.

6. Learned counsel for the petitioner
submits that the selections were notified
in the year 1989 whereas, the Government
Orders,
for
adjustment
of
O.B.C.
candidates scoring more marks than
general category candidates were issued
on 11.09.1991 and 19.12.1991. He
submits that the final result was declared
on 08.05.1992. The reservation rules
applicable on the date of announcement of
result more particularly on the last date of
filling up of the form should be applied to
the selections.

7. The petitioner has filed an
amendment
application
stating
that
O.B.C. candidates included in the merit
list on the basis of their merit had been
included by giving relaxation in age and
thus they were entitled to compete only in
the O.B.C. category. They cannot be
included in the general category. He has
also requested for summoning the records
of the selections.

8. Recently in Jitendra Kumar
Singh Vs. State of U.P. (2010) 3 SCC
119, the Supreme Court, has reiterated the
760 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
law as it was laid down in Indra
Sawhney Vs. Union of India (1992)
Supp (3) SCC 217, as follows:-

"49. It is permissible for the State in
view of Articles 14, 15, 16 and 38 of the
Constitution of India to make suitable
provisions in law to eradicate the
disadvantages of candidates belonging to
socially and educationally backward
classes. Reservations are a mode to
achieve the equality of opportunity
guaranteed under Article 16(1) of the
Constitution of India. Concessions and
relaxations in fee or age provided to the
reserved category candidates to enable
them to compete and seek benefit of
reservation,
is
merely
an
aid
to
reservation.
The
concessions
and
relaxations place the candidates on a par
with general category candidates. It is
only thereafter the merit of the candidates
is to be determined without any further
concessions in favour of the reserved
category candidates.

50. It has been recognised by this
Court in Indra Sawhney that larger
concept of reservation would include
incidental and ancillary provisions with a
view to make the main provision of
reservation effective. In Indra Sawhney it
has been observed as under: (SCC pp.
692-93, para 743)

"743. The question then arises
whether clause (4) of Article 16 is
exhaustive of the topic of reservations in
favour of backward classes. Before we
answer this question it is well to examine
the meaning and content of the expression
'reservation'. Its meaning has to be
ascertained having regard to the context
in which it occurs. The relevant words are
'any provision for the reservation of
appointments or posts'. The question is
whether the said words contemplate only
one form of provision namely reservation
simpliciter, or do they take in other forms
of special provisions like preferences,
concessions and exemptions. In our
opinion, reservation is the highest form of
special
provision,
while
preference,
concession and exemption are leser
forms. The constitutional scheme and
context of Article 16(4) induces us to take
the
view
that
larger
concept
of
reservations takes within its sweep all
supplemental and ancillary provisions ...
and relaxations, consistent no doubt with
the
requirement
of
maintenance
of
efficiency
of
administration
-
the
admonition of Article 335. The several
concessions,
exemptions
and
other
measures
issued
by
the
Railway
Administration and noticed in Karmchari
Sangh are instances of supplementary,
incidental and ancillary provisions made
with a view to make the main provision of
reservation effective i.e. to ensure that the
members of the reserved class fully avail
of the provision for reservation in their
favour."

(emphasis in original)

In our opinion, these observations
are a complete answer to the submissions
made by Mr. L.N. Rao and Dr. Rajeev
Dhavan on behalf of the petitioners.

52.
In
the
present
case,
the
concessions availed of by the reserved
category candidates in age relaxation and
fee concessions has no relevance to the
determination of the inter se merit on the
basis of the final written test and
interview. The ratio of the aforesaid
judgment
in
fact
permits
reserved
category candidates to be included in the
2 All Smt. Kamlesh Agnihotri and another V State of U.P. and others
761
general category candidates on the basis
of merit."

9. In this case we further find that
the three candidates who belonged to
O.B.C. category and were selected in
general category, giving the cause of
action for filing the writ petition, have not
been impleaded. They were appointed in
the year 1992 and most of them would
have served for more than 18 years as
District Audit Officers and may have been
promoted to the higher posts in the
department. In the absence of necessary
parties, no relief can be granted to the
petitioner.

10. In the end it is submitted that
one vacancy of the S.C. category was not
filled up and that two persons from the
general category did not joined.

11. We do not find any good ground
for calling of the record after 18 years, to
find out as to which general category
candidate
has
not
joined,
on
the
averments
made
in
amendment
application, after 16 years of the filing of
the writ petition. The vacancy must have
been
filled
up
in
the
subsequent
recruitment.

12. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2010

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 49545 of 2007

Smt. Kamlesh Agnihotri and another

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the petitioner:
Sri D.P.S. Chauhan
Sri Shesh Kumar

Counsel for the Respondents:
Sri Neeraj Tiwari
C.S.C.

Constitution
of
India
Art-226Regularisation
of
services-Petitioner
working as teacher in campus school of
University for last 20 years-school
established by decision of executive
council
of
University-government
refused
to
provide
any
financial
assistance-subsequently
executive
council decides to close down the
school after at the end of academic
session 2006-07-running of school did
not
fall
down
under
statuary
obligation-No
mandamus
can
be
issued.

Held: Para 9

A perusal of the said paragraph would
clearly demonstrate that there are
several factors which are required to
be fulfilled before the criteria of deep
and pervasive control can be pressed
into service in order to maintain a writ
petition against a body running such an
institution. Undoubtedly, the University
is a State within the meaning of Article
12 of the Constitution but the present
activity of running a Campus School
would not fall within its statutory